### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 1517

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

J AMES H ERBERT W HITE

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 15 CR 00026

‐ 1

— Elaine E. Bucklo

, Judge

.

____________________

A RGUED A UGUST 8, 2017

— D ECIDED A UGUST 22, 2017

____________________

Before W OOD

, Chief Judge

, and B AUER and E ASTERBROOK

,

Circuit Judges

.

B AUER

, Circuit Judge

. While on supervised release follow

‐ ing his conviction for failing to register as a sex offender,

James White pleaded guilty to new state charges of credit

‐

card fraud and theft. The district court, in response, revoked

White’s supervised release and ordered him reimprisoned

for 20 months—less than what is recommended in the sen

‐ tencing guidelines. White argues that this term of reimpris

‐2 No. 17

‐ 1517

onment is plainly unreasonable because, he says, the prose

‐

cutor and probation officer made inaccurate statements dur

‐ ing the revocation hearing. We acknowledge that the proba

‐

tion officer conducted himself inappropriately, but we are

not persuaded that his misguided advocacy affected the out

‐

come of the proceeding. White’s new prison term is reasona

‐

ble, and we thus affirm the judgment.

I. Background

In 2002, White was convicted in the Circuit Court of

Cook County, Illinois, of battery and sexual exploitation of a

minor. As a result, he was required to register as a sex of

‐

fender for 10 years. But in 2009 he failed to update his regis

‐

tration to reflect that he was “habitually living” in

Des Moines, Iowa, and in 2011 he was charged in federal

court with failing to register as a sex offender, 18 U.S.C.

§ 2250. White pleaded guilty and was sentenced to

30 months’ imprisonment and 5 years’ supervised release.

While on supervised release, he was to refrain from commit

‐ ting additional crimes, obtain his probation officer’s approv

‐

al before leaving the judicial district, and participate in sex

‐

offender evaluation and treatment if directed by the proba

‐

tion officer.

After White was released from prison, the government

moved to modify his conditions of supervision to require

that he submit to a psychiatric evaluation and take pre

‐

scribed medications. Underlying this request was a report

from White’s probation officer explaining that White had

“demonstrated difficulty regulating his emotions and be

‐

came explosive” during a meeting with a psychosexual

‐

treatment provider. In that written report the probation of

‐No. 17

‐ 1517 3

ficer asserted that White had “evidenced similar behavior

while residing at the residential re

‐ entry center,” where he

once “tossed a food tray against a window.” The probation

officer wanted a psychiatric evaluation to explore White’s

impulse

‐ control issues.

The district court granted the motion in part and ordered

White to submit to a psychiatric evaluation. White complied,

and the psychiatrist concluded that no psychiatric interven

‐

tion was necessary. White then requested that his conditions

of supervised release be modified to allow unsupervised

contact with his grandchildren, and the court obliged.

About three months later, the government moved to re

‐

voke White’s supervised release based on a second report

from the probation officer. This new report identified two

violations of White’s release conditions: (1) commission of

new crimes—theft and credit

‐ card fraud—and (2) leaving

the district without permission on two occasions when he

traveled to Iowa. The probation officer also noted an ongo

‐ ing criminal investigation into allegations of robbery and as

‐

sault related to White’s time in Iowa. White’s theft and fraud

crimes, to which he pleaded guilty in state court, constitute

Grade B violations. See U.S.S.G. § 7B1.1(a)(2). The probation

officer calculated the policy

‐ statement range to be 21 to 27

months of custody, based on White’s category VI criminal

history. By statute, however, the term of reimprisonment

was capped at 24 months by 18 U.S.C. § 3583(c)(3). The pro

‐

bation officer thus recommended 24 months.

The district court conducted a revocation hearing over

three days. On the first day, the prosecutor asserted that the

probation officer’s recommendation of 24 months was rea

‐

sonable and that the term should be imposed consecutively4 No. 17

‐ 1517

to White’s 6

‐ year sentence on the new state convictions.

White, the prosecutor argued, had “shown a complete lack

of respect for the law,” and “from the very beginning

... eve

‐ rything was an argument.” “Everything was difficult,” the

prosecutor asserted, and just “getting him to submit to a

psychological evaluation was difficult.” Defense counsel

disagreed that White had shown extreme disrespect for the

law; rather, counsel asserted, White’s conviction for failing

to register as a sex offender had occurred after he had faith

‐ fully registered for nine years and then, during the tenth

year, took a week

‐ long trip to Iowa and failed to register.

The prosecutor countered that she found “it hard to believe

that a federal judge imposed a 30

‐ month sentence of impris

‐

onment followed by 60 months of supervised release based

on nine years of perfect registration” followed by one failure

to register during a temporary trip to another state. White

himself stated that he had registered for nine years. But his

timeline does not add up: he was convicted of sexual exploi

‐

tation of a minor in 2002 and first failed to register just seven

years later, in 2009, although he was not indicted for that

crime until 2011. Neither party introduced evidence to sub

‐

stantiate its version of events, and the presentence report

from the 2011 prosecution is not part of the record.

The district court then asked about the underlying crime

that required White to register as a sex offender beginning in

2002. White himself answered, “Consensual sex with a mi

‐

nor.” Hearing this, the probation officer interrupted and,

without being invited by the judge or prosecutor, challenged

White’s statement: “There is no consensual sex with a mi

‐

nor.

... You can’t consent legally. It’s a crime.” After a terse

exchange between the probation officer and defense counsel,No. 17

‐ 1517 5

the court ended the debate by stating, “That’s not something

that’s, I think, ever in any way before me

... .”

There also was disagreement about the age of the victim

of White’s sex offense: the prosecutor said 13; White said 16.

Again, neither party supported its position with evidence.

As for the prosecutor’s assertion that “everything was an

argument” with White, defense counsel responded that

White had been entitled to object to proposed modifications

of the terms of supervised release. More importantly, coun

‐

sel explained, White had submitted to the psychological ex

‐

amination when it was ordered, and the psychiatrist con

‐

cluded that treatment or other intervention was not war

‐

ranted.

During allocution White apologized for committing the

2002 crime and for failing to register, but he went on to say

that the “failure to register and the credit card case” were the

“only trouble” he’d been in since 2002. And, White asserted,

he had committed the credit

‐ card crime because he was hav

‐ ing trouble regaining his disability benefits and wanted to

contribute financially to his family. He explained that, due to

restrictions on where he could live, he was unable to reside

with family. But, White continued, he felt obligated to sup

‐

port his wife, children, and grandchildren, which he could

not do on $200 per month in food stamps. So he used fraud

‐ ulently obtained credit cards to gain cash to pay for housing

and other bills.

When the district court asked that “somebody” supply

details about the credit

‐ card case, the probation officer

jumped in and explained that White had used counterfeit

government credit cards to purchase gas. (White later elabo

‐6 No. 17

‐ 1517

rated that he had used the cards to buy gas for others, who

would then give him cash.) Even as the prosecutor tried to

address the court, the probation officer didn’t yield:

Your Honor, I mean, the—if I may, the fact of the mat

‐

ter is this: You know, from a behavioral perspective,

Mr. White has a severe anti

‐ social personality disor

‐

der. He is sociopathic. There is no—I’m a licensed

clinical social worker. I’ve been a mental health pro

‐

fessional for almost 20 years now. I’ve been working

in this job for 19 years, supervising cases like this. It’s

not often that we see people of a sociopathic nature

such as Mr. White. It is what it is. It is what it is. And

he needs to be punished. And the community needs

to be protected from the danger that he poses. He

committed a crime while he was on supervision.

There is allegations that he has committed other

crimes while he is on supervision. There is an active

warrant in the state of Iowa for a robbery that he may

have committed. So—and—that’s the—that’s the

main issue. We’re not talking about somebody that

will benefit from supervision. We’re not talking about

somebody that will benefit from treatment services.

We’re talking about a person who has a very severe

predilection to predatory behavior; whether it be fi

‐

nancial, physical, whatever it may be.

In response, defense counsel pointed out that, contrary to

the probation officer’s appraisal, the psychiatrist had con

‐

cluded that psychiatric intervention wasn’t necessary. The

probation officer, without waiting for the prosecutor to

speak, retorted that anti

‐ social, sociopathic individuals areNo. 17

‐ 1517 7

“not amenable to treatment” and that “therapeutic interven

‐

tions are not clinically indicated.”

The district court concluded that 20 months’ reimpris

‐

onment, consecutive to White’s state sentence, would be ap

‐ propriate. The court opined that White was minimizing his

fraud crime, and that there should be punishment specific to

that violation of supervised release. The court went on to

explain that it would not impose a term of supervised re

‐

lease:

[I]t certainly doesn’t sound like you’re amenable to

any supervised release. Based on the admissions and

what I’m hearing here about—from you, I am going

to, indeed, revoke your supervised release, and I’m

going to sentence you to 20 months consecutive sen

‐

tence in the Bureau of Prison. And that will not be fol

‐

lowed by any supervised release. There is no point to

it. So that will end it.

Judgment was not entered that day, however, because the

parties were unsure whether White was entitled to credit

toward his federal term for time served in the Cook County

jail on a federal detainer. The court directed the parties to

return after investigating this question.

The parties appeared twice more before judgment was

entered. On February 22, 2017, the lawyers represented that

White wasn’t entitled to credit because his time spent in the

Cook County jail already had been credited against his state

sentence for the credit

‐ card fraud. The district judge then

asked the lawyers whether she needed to do anything more

before entering judgment. The prosecutor suggested that the8 No. 17

‐ 1517

court specifically tie the term of reimprisonment to the fac

‐

tors listed in 18 U.S.C. § 3553(a). The judge then stated:

Okay. Well, I certainly did talk about the nature and

circumstances of the offense. We spent quite a bit of

time on that. And I think the history and characteris

‐

tics of Mr. White. I specifically declined to enter any

supervised release following his re

‐ incarceration be

‐

cause it’s, I found, and do find, that he wasn’t com

‐ plying with the conditions of supervised release, and

it seemed to be really no point to it. The serious crime

is, on which I’m basing the sentence, is that he com

‐

mitted credit card fraud while he was on supervised

release.

After defense counsel interjected that the court had not spe

‐ cifically discussed the need for the term of reimprisonment

to run consecutively to, rather than concurrently with,

White’s state sentence, the court said it needed more time to

review the record and again continued the hearing.

When the parties returned for the second time, the dis

‐

trict court mostly reiterated its reasons for revoking White’s

supervised release and imposing 20 months’ reimprison

‐

ment. The court referenced White’s possession of govern

‐

ment credit cards and repeated fraudulent use of them, and

noted that White had minimized the seriousness of his crim

‐

inal conduct. Next, the judge discussed “the need for the

sentence to reflect the seriousness of the offense, promote

respect for the law and provide just punishment,” stating

that White “had already received a sentence from the state

court, but that really wouldn’t at all take into account the vi

‐

olation of supervised release.”No. 17

‐ 1517 9

The district judge went on to explain her decision not to

impose a period of supervised release, stating that supervi

‐

sion had “certainly caused Mr. White

... a lot of trouble.”

The judge also alluded to the probation officer’s comments:

[I]t was also clear that the probation officer did not

want him to have further supervised release because

it became clear, at least in the probation officer’s view,

which seemed to be—I found was substantiated by

Mr. White’s conduct that, which is not supervisable.

And is not—is not, in other words, is not amenable to

supervision.

The court then entered a judgment finding that White had

violated his conditions of supervised release in two ways:

committing another crime and traveling outside the district

without permission.

II. Discussion

On appeal, White argues that his below

‐ guidelines term

of 20 months, to run consecutively to his state sentence, is

plainly unreasonable. This contention goes nowhere; on ap

‐ pellate review a below

‐ guidelines term is presumed reason

‐

able, United States v. Mbaye

, 827 F.3d 617, 622 (7th Cir. 2016),

and White has not offered any reason to disregard that pre

‐ sumption.

Rather, the crux of White’s argument is that the prosecu

‐

tor and probation officer injected unreliable and inaccurate

information. This contention sounds in due process rather

than substantive unreasonableness. See United States v. Chat

‐

man

, 805 F.3d 840, 843–44 (7th Cir. 2015). Defendants have a

due process right to be sentenced on the basis of accurate in

‐

formation. See id .; United States v. Mejia

, 859 F.3d 475, 47810 No. 17

‐ 1517

(7th Cir. 2017). White gives examples of statements from the

prosecutor or probation officer that, he says, are inaccurate

or unreliable. In particular, he asserts that (1) the prosecutor,

without any evidence, challenged his version of the facts

underlying both his state sex offense and his conviction for

failing to register, (2) the prosecutor misrepresented that the

district court had modified White’s release conditions to al

‐

low him to live with his family, when actually the court had

done no more than permit unsupervised visits with his

grandchildren, (3) the prosecutor and probation officer both

alluded to nonexistent violations of supervised release and

exaggerated in stating that White had continuously failed to

follow the law, and (4) the probation officer launched a “vi

‐

cious personal attack” on White that was unprofessional and

turned the judge against him. White further contends that

these statements prompted the judge to impose a longer

prison term on the belief that he wouldn’t be amenable to

supervision.

Most of the alleged inaccuracies are inconsequential, so

we do not discuss them. But we are troubled by the proba

‐

tion officer’s inflammatory and unprofessional statements,

which far exceed the bounds of the probation officer’s role as

a neutral information gatherer. See United States v. Peterson

,

711 F.3d 770, 778–79 (7th Cir. 2013) (explaining that proba

‐

tion officers do not have an adversarial role and should not

be allowed to be perceived as “surrogate prosecutors”). The

probation officer insisted that he is qualified to know that

White “has a severe anti

‐ social personality disorder,” that he

“is sociopathic,” and that “the community needs to be pro

‐

tected from the danger that he poses.” And the probation

officer—again citing his own opinion about his professional

qualifications—further insisted that White would not benefitNo. 17

‐ 1517 11

from supervision, and “has a very severe predilection to

predatory behavior.”

As an arm of the court, a probation officer is not sup

‐ posed to take an adversarial role in a sentencing or revoca

‐

tion hearing, Peterson

, 711 F.3d at 778, and that’s just what

the probation officer did here. Moreover, despite his self

‐ proclaimed expertise, the probation officer’s perspective

finds scant support in the record. Indeed, the government

wisely refrains from defending the probation officer’s con

‐

duct or contesting White’s argument that the probation of

‐

ficer’s accusations lack factual support, instead arguing that

the district court did not rely on the probation officer’s in

‐ flammatory statements.

While the probation officer had reported one instance of

White losing his temper at the halfway house and throwing

a food tray, the only psychiatric evaluation in the record—

from a psychiatrist—concluded that clinical intervention

wasn’t necessary. At the time of sentencing, the only violent

crimes that White had been convicted of committing in the

previous fifteen years were the 2002 battery and sex of

‐

fense—the details of which are not in the record. And

White’s only convictions during the intervening years were

for not registering as a sex offender and credit

‐ card fraud.

These acts, while criminal, do not justify condemning White

as a dangerous sociopath. And if there are other facts to

support the probation officer’s assessment, they were not

presented to the district judge.

Still, the probation officer’s tirade, while wildly inappro

‐ priate, did not constitute “misinformation of a constitutional

magnitude.” See United States v. Tucker

, 404 U.S. 443, 44712 No. 17

‐ 1517

(1972). The district court explained the need for a consecu

‐

tive prison term, without further post

‐ incarceration supervi

‐

sion, to specifically address White’s poor adaption to super

‐

vision. That term—which is less than what the Sentencing

Commission and the probation officer had recommended—is

wholly justified by the record before the district judge.

One final note: At oral argument, the government asked

us to modify the judgment to reflect that the district court

only found one violation of supervised release rather than

two. This request is well taken. The district court’s judgment

lists two violations, but during the revocation proceedings

the court repeatedly had said it was concerned only with

White’s violation of the condition forbidding new criminal

conduct. The court did not find that White had violated the

condition of release restricting his travel out of the judicial

district.

III. Conclusion

The judgment is MODIFIED to strike the finding that

White violated the conditions of his supervised release by

leaving the judicial district without permission. In all other

respects, the judgment is AFFIRMED.